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2004 DIGILAW 1114 (JHR)

Kishun Gope v. Food Corporation Of India

2004-12-15

N.N.TIWARI

body2004
ORDER N.N. Tiwari, J. 1. In this application the petitioner has prayed for quashing the order dated 17.8.2004 passed in M.S. No. 16/2002 by the learned Sub-Judge-1, Giridih whereby he has rejected the written statement dated 15.3.2004 filed by the petitioner. 2. It has been stated that by "order dated 16.2.2004, the learned Court below had granted time to the defendant-petitioner to file written statement till 15.3.2004. On that very date the petitioner had. filed the written statement a bit belatedly, but in stead of accepting the same, the Court below debarred the petitioner from filing the written statement. According to the petitioner, he explained the delay in filing his written statement on 15.3.2004 by his petition dated 17.3.2004 and prayed for accepting the same, but by the impugned order his prayer has been refused and written statement has been refused. According to him when a date is fixed without giving specific time for filing the written statement, the defendant can file his written statement any time during the Courts working hours on that date. As the petitioner filed his written statement on 15.3.2004, there being no negligence or delay on the part of the petitioner, the same should not have been rejected. The learned Counsel for the petitioner submitted that the defendant has been erroneously debarred from filing the written statement on the ground that the written statement was filed .b6ybnd the period prescribed under amended Order VIII, Rule 1, CPC which has no application in the instant case. 3. On behalf of the respondent it has been submitted that the Court below has acted in accordance with the newly amended provision of Order VIII Rule 1, CPC and the impugned order is legal and sound. 4. From the impugned order and material on record it appears that the Court below had granted time till 15.3.2004 for filing written statement without specifying any hour of time. The defendant-petitioner filed his written statement on 15.3.2004 itself within the Courts working hours. There was, therefore, no occasion for him to pass the order debarring the petitioner from filing the written statement before the fall of the working hours of the day, particularly, on the ground of not filing the same within the period prescribed under Order VIII Rule 1, CPC. There was, therefore, no occasion for him to pass the order debarring the petitioner from filing the written statement before the fall of the working hours of the day, particularly, on the ground of not filing the same within the period prescribed under Order VIII Rule 1, CPC. In my view, when the Court below himself had fixed a date requiring written statement from the defendant-petitioner, he should have acted in accordance with the provisions of Order VIII Rule 10, CPC 5. In the circumstances and for the reasons aforementioned, I am of the view that the Court below haying himself granted time for filing written statement after the expiry of the period envisaged under Order VIII Rule 1, CPC and the written statement having been filed within the time permitted by the Court, the Court below should not have rejected the same on the ground of not filing the same within 90 days, prescribed under Order VIII Rule 1, CPC the impugned order runs counter to the provision of Order VIII Rule 10, CPC and the same is not sustainable in law. The order dated 17.8.2004 along with the part of the order dated 15.3.2004 debarring the petitioner from filing the written statement are set aside. This application is allowed. Consequently the suit will proceed onward accepting the written statement of the defendant-petitioner.